DoJ Asks Court to Nix Google Book Search Settlement

The Justice Department, citing anti-trust and copyright concerns, asked a federal court judge late Friday to reject a controversial settlement that would have allowed Google to cut through knotty copyright issues in order to create the library of the future.

The Justice Department, which began looking into the proposed settlement over monopoly concerns, suggested that the settlement seeks such broad changes in copyright law that the court needs to be very careful and should reject the current version.

The opinion is a blow to Google’s dreams of creating the 21st century’s version of the Library of Alexandria since the DoJ’s filing (.pdf) is likely to carry great weight with the court.

The central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure […] that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

The proposed Google Book Search settlement between all U.S. copyright holders and Google fails to give its competitors a way to license books similarly, lacks limitations on future licensing, and has too many conflicts between class members — some of which want the project to maximize their revenue, while others — such as many academics — value exposure over profit, according to the DoJ’s filing.

But the Justice Department did urge Judge Denny Chin, the Manhattan federal court judge overseeing the case, to let authors and publishers continue negotiating with Google, saying the project has many possible benefits.

“A properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost,” the DoJ told the judge.

The settlement was an answer to lawsuits by the Author’s Guild and the American Association of Publishers, which sued Google for its audacious project to digitize millions of books in the country’s best academic libraries. The class action settlement applies to all book copyright holders unless they chose to opt-out of the settlement by earlier this month.

Google has digitized more than 8 million books since 2002. More than 2 million of them are out of copyright and in the public domain. Google makes those available online for free in PDF form and they can now be printed on demand as well.

But millions of other titles are out-of-print with authors and publishers that cannot be found, a tricky problem that the settlement attempts to solve by creating a registry that will negotiate on behalf of the unknown rights holders and hold royalties for them in case they appear to claim their so-called “orphan work.”

Google also plans to create a subscription-only full text service that would let users search, view and print out the entirety of the catalog. By contrast, online users of Google Book Search would be limited to seeing only portions of books that are still in copyright, unless authors choose otherwise.

The settlement is scheduled to have a final fairness hearing on October 7, but that hearing could be cancelled or re-scheduled by the judge in response to Friday’s filing.